Monday, August 31, 2009

Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement ... I am thoroughly confused by a number of decisions that Smelt, Hammer, and their lawyers (I assume there are lawyers; the district court opinion does not indicate that they are acting pro se) have made. From the outside looking in, they appear desperate to go it alone and to be heroes on this issue. But their strategic choices have been bizarre and have reflected ignorance of core Fed Courts doctrine.

The attorney for the Smelt couple, Richard C. Gilbert, said that he plans to re-file the lawsuit. Readers of this site know that I have been skeptical about Gilbert.

Sunday, August 30, 2009

In this editorial, the Los Angeles Times anticipates that the trial in Perry v. Schwarzenneger will contest "deceptive claims" about same-sex marriage that Prop. 8 supporters made during last year's campaign. So "the federal case on Prop. 8 could get ugly, with every canard about homosexuality being put on trial." But if the contest "hastens the day" of marriage equality, it will have been worthwhile.

The editors also contend that the federal constitution's guarantee of equal protection applies to sexual orientation even without a showing that sexual orientation is "innate" and "immutable." They cite to a "famous footnote in a 1938 Supreme Court case" - footnote four of United States v. Carolene Products Co., 304 U.S. 144 (1938). But I find that the citation misses the point about why Judge Vaugn Walker considers the immutability of sexual orientation an important factual question to answer. Answering the question will help determine the burden the government must meet to justify laws that discriminate against same-sex couples.

Writing for the Caroline Products majority, Justice Harlan Stone acknowledged in the footnote that national, religious, or racial minorities may not able to rely on the "normal" political process for protection against prejudice. When, under these circumstances, the Court reviews the constitutionality of laws that discriminate against "discrete and insular" minorities, the Court may need to conduct a "more searching judicial inquiry" than to consider whether the government has a rational basis for discriminatory laws. The Times editors observe that religious faith - and not just an immutable, minority characertistic like race - can qualify for this more searching test of unconstitutional discrimination.

Because the First Amendment protects religious expression as a fundamental right, subjects of religious discrimination need not show that they belong to "a suspect class" to receive the highest level of constitutional review, known as "strict scrutiny" - a standard of review that evolved in response to civil rights litigation. Under strict scrutiny, government must have more than a rational basis for a discriminatory law. It must have a compelling justification; the law must be narrowly tailored to the government's goals; and the law must represent the least restrictive means of achieving these goals. A "suspect class" is a minority that has historical experience of discrimination, lacks sufficient political power to redress the discrimination, suffers no incapacity in productive contribution to society, and has immutable characteristics, such as national origin or race.

If the Perry plaintiffs can demonstrate that gay and lesbian couples have been deprived a fundamental right (such as privacy or autonomy), or belong to a suspect class, then government must satisfy a high burden of justification for laws, like Prop. 8, that treat them differently than straight couples. To demonstrate membership in a suspect class, the plaintiffs must provide sufficient evidence that gays and lesbians can not change their sexual orientations. Of course, the plaintiffs argue that same-sex couples have a fundamental right which Prop. 8 violates. But they argue that membership in a suspect class - no less than the claim to a fundamental right - also warrants strict scrutiny. And that is the point the LA Times editors miss.

Saturday, August 29, 2009

Last week, Wisconsin Attorney General J.B. Van Hollen announced his decision not to defend the state's new domestic registry law in Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860). The law extends up to just 40 of over 150 marrital benefits. The plaintiff, Wisconsin Family Action, claims that it violates Art. XIII, Sec. 13, which bans same-sex marriage and legal status for relationships "identical or substantially similar to marriage." This constitutional amendment was adopted in the 2006 election. On August 8th, the Wisconsin State Journal reported that in the runup to the election, Wisconsin Family Action told the press that the amendment would not prohibit the kind of domestic registries that the law provides.

In this editorial, the Milwaukee-Wisconsin Journal Sentinel objects to Van Hollen's decision not to defend the law. The editors contend that it does not violate the letter of the constitutional amendment, and that voters did not intend to deny same-sex couples the law's benefits. They also suggest that Van Hollen has elevated politics above principle, because he may run for governor.

Friday, August 28, 2009

The National Law Journal examines and assesses four lawsuits that challenge section 3, or sections 2 and 3, of the federal DOMA, singling out two - both in Massachusetts - that hold the most promise for the law's opponents.

On May 13th, Alliance Defense Fund (ADF) attorney James ("Jim") Campbell told OneNewsNow.com that "[t]he city of Cleveland has enacted a domestic partner registry which violates" Ohio Const. Art. XV, sec. 11. Adopted in the 2004 election, this constitutional amendment bans not only same-sex marriage, but also

a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

The domestic registry confers no legal benefits, protections or responsibilities; by Equality Ohio's account, it is "simply" a database of names of registered couples. According to OneNewsNow.com, Cambell claims that "domestic partnerships are generally equal to marriage."

On May 7th, ADF announced that

ADF-allied attorney [David R. Langdon] sent a letter Thursday to City of Cleveland Law Director Robert J. Triozzi, asking him to stop the city’s newly enacted "domestic partnership registry."

Triozzi did not meet ADF's demands, and on August 12th, Langdon, with ADF attorneys Jim Campbell and Brian Raum, filed a lawsuit on behalf of the Cleveland Taxpayers for the Ohio Constitution. The case is Cleveland Taxpayers for the Ohio Constitution v. Cleveland (Cuyahoga County Court of Common Pleas Case No. CV-09-701308).

Gay People's Chronicle reports on the plaintiff, Langdon, the origins of the case, and a 2007 precedent that appears to undermine it - State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547. Attorney Chris Geidner of Law Dork has offered his assessment of the likely impact of Carswell. To learn more about the case, readers might wish to consider an article and podcast by law professor Marc Spindelman, of Moritz College. I have also offered Professor John Culhane's conjecture on why ADF might, by its lights, consider the opportunity "good lawyering."

As Gay People's Chronicle reveals, Langdon wrote the constitutional amendment, and filed a lawsuit before its adoption to challenge a similar domestic registry in Cleveland Heights. And what is Cleveland Taxpayers for the Ohio Constitution? It looks like a front organization created for the purpose of the Cleveland lawsuit:

The taxpayer in the latest suit is Dorothy McGuire of Cleveland, whose Berea Road residence is also the address of the group she represents, Cleveland Taxpayers for the Ohio Constitution. In the suit, Langdon described the group as “an unincorporated association, several members of which are taxpayers and residents of the city.” McGuire was one of the people circulating petitions to force a vote on the registry earlier this year. She was gathering signatures on Public Square at a National Day of Prayer event on May 7, the same day the registry opened. Nothing has come of the petitions, so far. McGuire told the Chronicle that day that she is a member of St. Vincent de Paul Church.

Thursday, August 27, 2009

In McConkey v. Van Hollen (Wisconsin Supreme Court Case No. 2008AP001868), plaintiff William McConkey alleges that when voters adopted a state constitutional amendment, Art. XIII, § 13, the amendment should not have qualified for the ballot, because it violates the single-subject rule for constitutional amendments under Art. XII, § 1.

In its press release, ADF states:

ADF attorneys submitted their latest friend-of-the-court brief on behalf of the Wisconsin Family Council in the lawsuit, now named McConkey v. Van Hollen, together with ADF-allied attorney Samuel Taylor of Kenosha, Wisconsin. In conjunction with the brief, ADF attorneys submitted a motion for permission to file the brief ... ADF attorneys argue, as they have in previous friend-of-the-court briefs, that the amendment deals with only one issue--preserving and protecting the institution of marriage--and therefore does not violate the requirement that a state constitutional provision address only one subject.

I will try to obtain and post the lower court ruling in the case. State Attorney General J.B. Van Hollen describes the ruling by Dane County Circuit Court Judge Richard G. Niess and the appeal:

In the circuit court, Judge Niess found that the marriage amendment ballot question satisfied the constitutional requirement that each ballot question contain only one amendment. Judge Niess found that the question was a single amendment because the propositions contained in the text related to the same subject matter and were designed to accomplish the same general purpose. After Judge Niess’s ruling, McConkey appealed to the Wisconsin Court of Appeals, which certified the appeal to the Wisconsin Supreme Court. In response to McConkey’s appeal and the Court of Appeals’ certification, Van Hollen has asked the Supreme Court to affirm Judge Niess’s holding.

The Wausau Daily reports that Pines will represent the state in another high-profile case involving Art. XIII, § 13 - Appling v. Doyle. The plaintiff, Wisconsin Family Action, claims that the the state's new domestic registry law violates the amendment, and has petitioned the state Supreme Court to review the claims without the benefit of litigation in lower courts. Because state Attorney General J.B. Van Hollen has decided not to defend the law, Governor Jim Doyle has appointed Pines to do so.

Doyle said he selected Pines, a 34-year legal veteran who has argued in front of the high court many times, because he is "uniquely qualified." He noted Pines is already defending a citizen who argues the constitutional amendment should be struck down because it was improperly put to voters. Oral arguments in front of the high court in that case are set for November.

Pines said his firm's familiarity with the issue meant he could get started "in the defense [in Appling v. Doyle] very, very quickly without a lot of lead time." He said he would ask the court to push back an Aug. 31 deadline for the state to respond to the lawsuit, but will be ready to do so if that request is denied.

The court is considering whether to take the case, or whether lower courts should decide the issue first.

El Paso's city council has approved extension of health insurance benefits to same-sex partners of city employees. "The city estimates only a few dozen employees will be affected by the policy change."

The Alliance Defense Fund represents plaintiffs seeking to overturn domestic registries in Wisconsin and Cleveland. Like Wisconsin and Ohio, Texas has a super-DOMA amendment that bans same-sex marriage and recognition of same-sex relationships that resemble marriage:

(a) Marriage in this state shall consist only of the union of one man and one woman

(b) This state or a political subdivision of this state may not create or recognize any legal status identical or simlar to marriage. [bold added]

The city council addressed whether the council's proposal would violate the state's super-DOMA amendment. A council member said that she would seek clarification from the city attorney. Laura Gordon, of the city attorney's office, told the council,

The constitutional amendment only talks about defining marriage. This does not define marriage or a relationship, the city can chose to extend benefits to anybody it likes.

Some citizens at the council meeting are bound to have a different opinion. They include Larry Brown, a local pastor, who urged the council to vote against "sexual immorality." Another participant compared "homosexuality to pedophilia." The Alliance Defense Fund (ADF) will have little difficulty engaging plaintiffs in El Paso to sue the city over its program if plaintiffs seeks its assistance.

The definition of a "domestic partner" might affect the odds of a lawsuit's success. The City's definition makes its program vulnerable to the same kind of legal challenge that ADF has pursued in Wisconsin and Cleveland:

An individual who lives in the same household and shares the common resources of life in a close, personal, intimate relationship with a City employee if, under Texas law, the individual would not be prevented from marrying the employee on account of age, consanguinity or prior undissolved marriage to another. A domestic partner may be of the same or opposite gender as the employee. The City of El Paso Health Benefit Plan shall establish the appropriate forms and determine the appropriate documentation that may be presented to establish the relationship. (El Paso Office of Management and Budget, FY2010 City Manager's Proposed Budget)

On August 21st, Wisconsin Attorney General J.B Van Hollen announced his decision not to defend Wisconsin's new domestic registry law in Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860). Plaintiffs allege that the law violates Art. XIII, § 13 of the Wisconsin constitution. Adopted in the 2006 election, this constitutional amendment bans not only same-sex marriage, but also legal status for relationships "substantially similar" to marriage. The amendment presents an example of a "super DOMA" amendment.

become the first state with a constitutional amendment banning same-sex marriage and civil unions to put in place domestic partnerships for same-sex couples. It is also the first Midwestern state to legislatively extend legal protections to same-sex couples.

Wisconsin's domestic-registry law sets a precedent for challenging the reach of super DOMA amendments in over a dozen states that have them. The law underscores the inconsistency of allowing same-sex couples some marrital benefits, but excluding them from marriage.

Of course, the precedent may have limited value if state supreme courts rule as the Michigan state Supreme Court did in National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), a case that law professor John Culhanealerted me to. In that case, the Court used dictionary definitions to support its conclusion that state employers violate the state's super DOMA amendment (Art. 1, § 25), if they do more than extend health insurance benefits to the same-sex partners of employees. Supporters of same-sex marriage also describe the psychological, financial, and other harms to same-sex couples and their families of limiting them to civil unions or domestic partnerships. Examples include testimony I mentioned yesterday before the the New Jersey Civil Union Review Commission, and a comparative analysis of civil unions and marriage in this report of the New York State Bar.

Nevertheless, the experience of New Jersey's and New York's same-sex couples lacks a parallel in Wisconsin. That state's new law presents an important opportunity for them, and an equally important threat to opponents of same-sex marriage.

Katie Belanger, executive director of Fair Wisconsin, told the 08/23/09 GazetteExtra.com that the law "extends 43 benefits to same-sex partners compared to more than 200 benefits granted by marriage." These benefits include "inheritance rights, hospital visitation and medical leave."Belanger considers the law

a very important and critical step in moving toward equality. This is the first positive piece of legislation that the LGBT community has seen in more than 27 years.

The GazetteExtra.com interviewed Cathie, a lesbian who would not identify herself because she wants to protect her identify from other workplace colleagues. Cathie said that

When you’re from a month ago thinking society will never let us have this, to at least being able to do the domestic partnership, it will be one of the happiest days of my life.

Cathie's comment informs understanding of the unique circumstances same-couples face in the "super DOMA" states. Domestic partnership laws in these states not only immediately benefit gay and lesbian couples, but over the long-term can alter public perception of discriminating against such couples, as more domestic partners present tangible examples of their families to relatives, colleagues, friends, and neighbors.

The nation's leading Christian legal advocacy group, the Alliance Defense Fund, has defended super DOMA amendments against the perceived inroads that these laws represent. It represents Wisconsin Family Action in the Appling lawsuit, and recently filed a lawsuit to defend Ohio's super DOMA amendment. [Cleveland Taxpayers for the Ohio Constitution v. Cleveland (Cuyahoga County Court of Common Pleas Case No. CV-09-701308)].

Tuesday, August 25, 2009

In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), the New Jersey Supreme Court ruled that the state must allow same-sex couples "the full rights and benefits enjoyed by heterosexual married couples." But the Court left it up to the state legislature to determine whether a new state law would let same-sex couples marry or would let them enter civil unions with all the rights and benefits of marriage. The legislature enacted Public Law 2006, Chapter 103, establishing civil unions for same-sex couples, and authorized the New Jersey Civil Union Review Commission to evaluate the law. The Commission has examined the consequences of denying these couples access to marriage. Witnesses have testified to the Committee that

the two-tier system created by the Civil Union Act [offers] “an invitation to discriminate” and a “justification to employers and others” to treat same-sex couples as “less than” married couples.

These facts provide the context for the AP article:

A bill that would allow gay marriage is expected to be debated in Trenton during the lame-duck period between the Nov. 3 election and start of a new legislative session in January. In the fall, there probably will be television and radio ads on the issue. But for now, the focus is mostly on the faithful speaking to their representatives in Trenton ... Social conservatives have been trying for years to get such an amendment [banning same-sex marriage] on New Jersey's ballot, but they have not come close so far. Now, they're on the political defensive.

Yesterday, U.S. District Court Judge David O. Carter dismissed the lawsuit of a plaintiff couple in Orange County, California, who tried to challenge not only Prop. 8, but also the federal DOMA. (The Prop. 8 challenge was dismissed earlier.) Carter ruled narrowly on one of the procedural grounds addressed by the Department of Justice (DoJ) in its reply brief of last week, in which it defended the federal DOMA and its motion to dismiss.

Carter ruled that the DoJ's motion to dismiss "turns not on the merits of the dispute, but rather on a technical issue relating to jurisdiction." The Smelt plaintiffs initially filed their latest complaint in Orange County Superior Court, and then the DoJ - with the consent of plaintiffs - removed it to the U.S. District Court. But a federal district court does not have jurisdiction to hear a case removed from a state court if the state court did not have jurisdiction to hear it. [See 28 U.S.C. §1441(f).] Because the state lacked jurisdiction over the federal DOMA claims, Carter decided that the U.S. District Court must dismiss the case.

This case may be remembered as the occasion for the Obama Administration's retreat in defending the federal DOMA. Plaintiffs' attorney, Richard C. Gilbert, said that he plans to re-file the lawsuit later this week in federal court, having now already failed in two lawsuits to overcome dismissals. [For the outcome of the first lawsuit, see Smelt v. County of Orange, 447 F.3d 673 (9th Cir.2006).] I am doubtful that he has been an ideal choice to represent the plaintiff couple, Arthur Smelt and Christopher Hammer. See, for example, his support for dividing California into two states, with a "New California" to recognize equality in the right to marry.

This dismissal is merely a speed-bump, since clearly the federal district court would have jurisdiction over a case filed directly in that court. Furthermore, at the very least I think it should be possible for Smelt and Hammer to file a suit that appropriately alleges some deprivation of rights under federal law attributable to Section 3 of DOMA.

Therefore, no federal court jurisdiction, therefore no lawsuit. Until the plaintiffs re-file, which they're almost sure to do. Of course, Judge Carter pointed out that they'll then be subject to the new pleading standard under Bell Atlantic v. Twombly, which could be difficult for them to meet.

In his order, Judge Carter states:

Once it has adequately stated a claim, a plaintiff may support the allegations in its complaint with any set of facts consistent with those allegations. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007). Dismissal for failure to state a claim does not require the appearance, beyond a doubt,that the plaintiff can prove “no set of facts” in support of its claim that would entitle it to relief.

This was the challenge that led to the now-infamous Department of Justice Motion to Dismiss on June 12, which led to the President’s Oval Office ceremony on June 17 and speech about LGBT equality at a White House reception on June 29. Just this past week, DOJ filed a far-less-overreaching reply brief in the case.

In Perry v. Schwarzenneger, the federal challenge to Prop. 8, Judge Walker dismissed motions to intervene by would-be plaintiffs and defendants, and scheduled the case for trial on January 11th. Here is a roundup of continued commentary on the case.

1. "What will the ramifications (if any) be of placing the control of one of the biggest ever lgbt rights lawsuits in the completely private, non-transparent realm of big firms?"

2. "[W] ill the Perry case ultimately be only about California, litigated in a way that its only possible impact will ever be on California?" (Litigating the case this way, I think, represented the legal strategy of the three gay rights groups that tried to intervene on behalf of proposed plaintiffs.)

3. "[W]hat will the impact be of Perry on the effort to repeal Prop 8?"

Boies and Olson answer only to a (presumably) hand-picked board of directors that is far less representative than any of the LGBT legal groups might be. Even if Boies and Olson are well-meaning, is there any reason for confidence that they will make their choices in a manner that will be generally beneficial to LGBT people? Or that, given their lack of experience in this regard, they will even think the choices through critically?

In Perry v. Schwarzenneger, the federal lawsuit against Prop. 8, Theodore Olson last week filed a supplemental case management statement on behalf of plaintiff same-sex couples. In this documents, Olson indicates that plaintiffs will engage psychologists to testify the psychological effects of Prop. 8:

"Plaintiffs intend to demonstrate that relegating lesbian and gay families to a separate legal institution for state recognition marginalizes and stigmatizes gay families; that there is a significant symbolic disparity between domestic partnership and marriage; that the inability to marry relegates gay and lesbian relationships to second class status; that the creation of the alternative regime of domestic partnership reinforces anti-gay prejudice, which has the potential to escalate into violence; and the stigma associated with discrimination and second-class treatment takes a toll on the well-being of gay men and lesbians and their familes." (pages 12-13; bold added)

In her law review article, Cahill offers a novel way to understand the "symbolic disparity." She places the idea of "second-class status" in the unique historical uses of language to reinforce homophobic prejudice. She considers

why the use of separate nomenclature to describe gay and straight relationships will never be equal,even if those relationships are substantively identical, as well as why something that looks like a stepping stone to equality (civil unions/domestic partnerships) is, in fact, discriminatory and harmful. While advocates routinely turn to the repudiated legal doctrine of separate-but-equal to support their contention that nominal separation is unconstitutional, they have overlooked the history that best explains why that is so. That is, they have overlooked the most persuasive reason why the nominal separation between “marriage” and “civil union” (or “domestic partnership”) will never satisfy genuine equality: Because it hearkens back in any number of ways to homosexuality’s criminal past, and, in particular, to a time when same-sex intimacy was known simply, and derogatorily, as “a crime not fit to be named ... [W]hen the state refuses to extend “the ‘m’ word” to same-sex couples, as more than one court has tellingly framed the name issue, it reminds gays and lesbians that they have always been excluded from names (in one way or another) in the law and that they have suffered, and continue to suffer, a variety of harms on account of that exclusion. It reminds them, in short, that the “gay closet”—or, more specifically, the gay linguistic closet—remains “a shaping presence” in their lives.

Attorney General J.B. Van Hollen says that because he has overriding loyalty to the state constitution, and to the "highest expression of the will of the people," he can not defend the law that Governor James Doyle proposed. According to the State Journal, Doyle has "blasted Van Hollen's decision." In his statement, Doyle also links to a memo by "[University of Wisconsin] Law Professor David Schwartz outlining why the domestic partnership registry is constitutional." The State Journal also reports that Van Hollen has not announced whether he will run as a Republican candidate for Governor in the 2010 election.

The state will seek outside counsel to defend the law. Fair Wisconsin has said that it will join in the defense, retaining Lamda Legal as counsel:

"The domestic partnership registry and the constitutional amendment barring same-sex couples from marriage are not in conflict with each other," stated Christopher Clark, senior staff attorney with Lambda Legal. "In the absence of such a conflict, we are perplexed and disappointed by the Attorney General’s decision and we encourage the Governor to vigorously defend the important legal protections that the legislature validly enacted to protect Wisconsin citizens."

Van Hollen's decision bears at least superficial resemblance to decisions by California Attorney General Jerry Brown to oppose Prop. 8 in Strauss v. Horton, and to not defend it in the federal lawsuit, Perry v. Schwarzenneger. In Strauss, Brown claimed that Prop. 8 violates the state constitution's guarantee of inalienable rights, and in Perry, he claims that it violates the federal constitution's guarantee of equal protection. So both Van Hollen and Brown purport to take principled decisions on their respective refusals to defend state law. But there there the superficial resemblance ends, and the real difference begins. Brown justifies his actions by acknowledging fundamental limits that state and federal constitutions impose on the "will of the people" against an unpopular minority. Van Hollen, on the other hand, justifies his action by giving supremacy to popular democracy in the process of constitutional interpretation - a hardline version of "popular constitutionalism."

It's a platitude to attribute politics to Van Hollen's and Brown's decisions. (Brown is also an unannounced contender for a third term as California's governor.) But we can't assess whether political calculation coincides with principle, unless we also consider whether state attorney generals have a sound legal standard of when they should decline to defend state laws. Attorney and journalist Peter Scheer recently proposed a test that sets the bar so high that they would very seldom satisfy it.

At any rate, disputed legal protections of same-sex couples may lead other state attorney generals to follow the examples of Van Hollen and Brown, just as disputed fair housing protections of African Americans led California Attorney General Thomas Lynch to oppose a 1964 state constitutional amendment that would have banned fair housing laws.

I have just updated my selective compilation of filings in Perry v. Schwarzenneger, the federal lawsuit in which plaintiff same-sex couples seek to overturn Prop. 8. As readers of this site know, I have described substantive differences between plaintiffs and would-be plaintiffs, and between defendants and would-be defendants. (See my posts under "Affaire de AFER." ) While Judge Walker denied the proposed plaintiffs and proposed defendants opportunity to intervene, their case management statements are likely to underscore the differences in question. And these "factional" differences, I think, may also affect the course and outcome of the case, because by denying motions to intervene of the additional parties, Judge Walker may have closed the door on alternative ideas of specific claims in the case and priorities for evidence in the factual record. I form no conclusion yet on whether he has done so. I expect to post again on this subject when I've had opportunity to read the documents.

Saturday, August 22, 2009

Your thoughtful comments and kind encouragement have quickly helped resolve my lingering doubt about whether my blog was needed. You have identified important uses and benefits that I did not anticipate. I am gratified to learn that non-attorneys read my posts. Thank you for renewing my commitment to a service you consider worthwhile.

Whenever inspiration wanes, I turn to Groucho. Here are lines from "Duck Soup":

Ambassador Trentino: I am willing to do anything to prevent this war.Rufus T. Firefly: It's too late. I've already paid a month's rent on the battlefield.

I often struggle to balance the demands of blogging and other personal priorities. But I see that it's too late to give up now. And I have just learned that Google Analytics allows me to monitor "visits," a rough gauge of potential reader interest.

So I have decided to continue, but I need your help. First, please feel welcome to suggest improvements. (If you prefer privacy, you may e-mail me at mginsborg at gmail.com.) Second, I am eager to engage the entire community of legal scholars and attorneys who seek a venue for expressing their views. One reader calls this blog a "one-stop" shop. I aim to make it just that. Please feel welcome to invite all interested members of the legal community to contact me about guest blogging. I want all legal views to have a platform here.

I will resume updates as early as tomorrow. In the meantime, have a look at law professor John Culhane'slatest post on the "DOMA brief" that the Justice Department filed earlier this week in the Smelt case.

Friday, August 21, 2009

I have had several goals for this site, to distinguish it from other blogs on the same subject. I have aimed to provide a reliable updating service that represents the full spectrum of legal news and opinion, and to provide legal researchers a useful means of integrating the latest developments in their research projects. As a long-term goal, I have also sought to provide a venue for a robust exchange of legal commentary. I was therefore honored to invite law professor John Culhane as a guest blogger on "Marriage Equality and Religious Liberty." (I would, of course, welcome contributions from all interested legal scholars and attorneys.)

While I consider my blogging goals important, I now need you to tell me that you want me to continue. You will not be surprised to learn that I face competing demands on my time. I hope to determine whether the level of reader interest justifies my considerable investment of time. I have received welcome encouragement from Professor Culhane and Unite the Fight. Next week I will announce my decision to either continue or bid you farewell. (In any case, I will not remove the blog.)

For better or for worse, the lawyers who have been leading the legal battles for same-sex marriage will be watching all of this from the sidelines, their role limited to the writing of amicus (or "friend of the court") briefs. Although there are many of us who believe that the time is not yet right for this kind of federal constitutional lawsuit, the question no longer is whether the lawsuit should be brought, but whether it will succeed. Mr. Olson and Mr. Boies seem confident that it will. I hope they are right. But if they are not, they will likely go back to their high-powered law practice, leaving it to the gay rights organizations to pick up the pieces.

Today U.S. District Judge Vaughn R. Walker basically accepted Ted Olson's strategy to put the pending Proposition 8 lawsuit, Perry v. Schwarzenegger, on a fast track to trial. Rejecting attempts to intervene by the LGBT movement groups and an anti-gay marriage group, and granting only limited participation to the City and County of San Francisco - which had sought to intervene as a full-fledged co-plaintiff, along the lines of what the state of Massachusetts has done in the pending challenge to the Defense of Marriage Act in the US District Court in Boston - Walker has set a trial date of January 11, 2010, with a sharply expedited schedule for discovery and pre-trial motions.

The news today has come from San Francisco that U.S. District Judge Vaughn Walker set a rather quick trial date and has denied the request of several LGBT community groups in California — represented by the ACLU, Lambda Legal and NCLR — to intervene in the Perry v. Schwarzenegger lawsuit challenging the constitutional validity of Proposition 8. The similar request of the Campaign for California Families, which had supported Proposition 8, to intervene also was denied.

Geidner discusses two claims made in the supplemental case management statement of Prop. 8 Proponents. One claim is that gay sexual orientation can change. Another is that Prop. 8 fosters procreation and optimal parenting. In the supplemental statement, the Alliance Defense Fund and Cooper & Kirk identify a plan to provide supporting evidence. Culhane cuts to the chase about the fallacies their plan involves.

The paper also asks Eugene Volokh, Amy Wax, Evan Wolfson and Kenji Yoshino about Olson’s effort. The answers, for those familiar with the thinkers’ works, were not at all surprising.

My observation on August 20th:

Yesterday's development in the Perry case has far-reaching consequences that more than deserve the attention of the commentators. One consequence concerns the plaintiffs and defendants who Judge Walker has not allowed to intervene.

The Recorder reports that CCF sought intervention, in part, because Prop. 8 proponents had accepted, as fact, that sexual orientation has no bearing on the capacity of gays and lesbians to contribute to society, except to reproduce. "Sexual orientation does impact more than just procreation, " said former Liberty Counsel attorney Rena Lindevaldsen told Judge Walker on behalf of CCF. She claimed that it also impacts childraising.

It's hardly surprising that the news media have supported a carefully crafted, if one-dimensional, drama over who will control the plaintiffs' side of the case. Theodore Olson - who, with David Boies, represents plaintiff couples - told the Los Angeles Times that control of the case presented the issue of controversy between his legal team and three gay-rights groups that sought to intervene on behalf of other plaintiffs. The made-for-media drama has been a deliberate distraction from real, and important, issues of controversy that not only cross both sides of the case, but have fundamental implications on how attorneys for plaintiffs and defendants will present facts and legal arguments.

These San Francisco legal newspapers cover intervention disputes between legal groups and parties on both sides of the case. They also report on Judge Walker's observation that while the city of San Francisco had established a governmental interest in the case, Governor Schwarzenneger and the Caifornia Attorney General did not even try.

Chief Deputy City Attorney Terry Stewart said that during the trial the city planned to call witnesses who could testify about the public health costs of treating gays and lesbian families who feel discriminated against. [Judge Walker] also ordered California Attorney General Jerry Brown's office to work with the city's lawyers in providing testimony on how the voter-approved measure affects state government.

I find this the best of the news articles on the August 19th hearing. Among other useful details, the reporter, Josh Richman, identifies scheduled deadlines for discovery, witness designations, and conferences. Richman also considers stipulations to fact that Prop. 8 proponents have made:

The parties already have begun filing briefs listing the areas in which they agree and disagree, setting parameters not only for what's to be argued at the trial but also for the public debate that's sure to rage outside the courthouse as same-sex marriage advocates continue moving toward a new ballot measure to repeal Proposition 8. For example, Prop. 8's proponents wrote in recent briefs they'll probably be able to come to some agreement before trial that gay or lesbian sexual orientation isn't an illness or disorder; that, besides certain aspects of procreation, sexual orientation doesn't relate to one's ability to contribute to society; that sexual orientation is fundamental to one's identity; and on other stipulations to avoid the need for time-consuming testimony and evidence. With such things out of the way, the trial will home in on basic questions of whether Prop. 8 is discriminatory and unconstitutional in its intent and effect, and what the public's interests are in restricting marriage to heterosexuals.

Sponsors of the ballot measure had opposed a trial, saying legal precedents and studies about parents and children can easily demonstrate that voters had reasonable grounds to add a traditional definition of marriage to the state Constitution. But their lawyer, Charles Cooper, did not argue against a trial at Wednesday's hearing in San Francisco and said only that he would try to narrow its scope.

Notice the less-than-coincidental omission about a long-running conflict between ProtectMarriage.com and the California Campaign for Families:

As the only party to Perry v Schwarzenegger that has consistently fought to preserve Prop.8, we are pleased with Judge Walker’s decision to deny intervenor status to Campaign for California Families, the Our Family Coalition, Lambda Legal, and the National Center for Lesbian Rights. The motions for intervenor status clearly demonstrate the discord and disagreement that exists among gay activists as they continue to run roughshod in their efforts to overturn the will of the people in regards to upholding traditional marriage in California.

On behalf of our clients, we are disappointed that the court did not permit organizations that represent California’s diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling.

Some LGBT activists are charging President Obama with hypocrisy or inconsistency in his approach to DOMA (and to "don't ask, don't tell" - the embarrassing military policy under which we collectively are supposed to play let's pretend" when it comes to gays serving in the uniformed military). I think the argument works better when it comes to DADT, and here's why.

Today, the Obama Administration filed its reply brief in the California Smelt case, where gay couples have challenged the Defense of Marriage Act (”DOMA”). Let me start by giving away the punch line: It contains powerful statements on gay parenting and the weakness of the procreation argument that are likely to cause apoplexy in opponents of equality. This brief goes a long way towards undoing the legal and political damage that an earlier filing caused.

[The Department of Justice] persists in arguing that in light of the raging debate over same-sex marriage, it was rational for Congress to maintain the "status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states." That strikes me as lame. Maintaining a discriminatory status quo calls for a justification, an affirmative reason why, as a matter of public policy, the federal government should disrespect marriages from some states and not from others.

What a difference two months can make. While the DOJ hasn't retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs' lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job.

Those who assert that the Obama Administration did not even need to file a brief will be dissatisfied with the brief because it essentially incorporates the earlier arguments into this reply brief and continues to defend DOMA as a legal matter. But, for those many people who believe that the government, in a situation such as this, does have a responsibility to defend the law, this brief makes clear the distinction between opposing a policy and defending a law.

The new brief continues to argue that sexual orientation classifications are subject to only rational basis review and that Congress was justified in enacting DoMA. So the bottom line defense hasn't changed ... [But] [t]he most powerful and important aspect of this new brief is its categorical statement that there is no rational basis for the arguments in favor of discrimination that are grounded in claims about procreation and child-rearing.

"I think it's unfortunate that the administration has taken a position seeking to repeal federal DOMA and now is in the precarious position of defending it in court," said Brian Raum, senior legal counsel for the Alliance Defense Fund, a Christian legal organization.

Traditional marriage supporter Brian Raum, senior counsel of the Alliance Defense Fund, isn't surprised by the administration's opposition to the marriage law but calls it a tragedy. “The administration stands against the vast majority of Americans who have voted decisively to protect marriage every time marriage is on the ballot,” Raum said. “Though it’s no surprise that the administration opposes DOMA, it’s a tragedy for America’s children that our leaders don’t believe that every kid has a right to both a mom and a dad.”

The mixed message got a mixed review from Joe Solmonese, president of the Human Rights Campaign, a gay-rights group. “It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act,’’ Solmonese said in a statement. “While they contend that it is the DOJ’s duty to defend an act of Congress, we contend that it is the administration’s duty to defend every citizen from discrimination.’’

"The administration listened to our concerns and removed some of the offensive approaches," said attorney Jenny Pizer of Lambda Legal, a gay-rights organization. But she said the government "continues to argue that anti-gay discrimination does not deserve serious constitutional scrutiny."

At a Washington conference in June, White House Staff Secretary Lisa Brown and vice presidential chief of staff Ronald Klain acknowledged dissatisfaction among the president's gay supporters. "There's no question . . . that there were some cites in there that should not have been" in the earlier filing, Brown said at the American Constitution Society's annual conference, noting that this was her personal opinion. "The administration is trying hard; it's moving slowly," Brown said at the time.

Brian Brown, executive director of the National Organization for Marriage, accused the president of breaking a campaign promise made in his televised interview with California megachurch pastor Rick Warren. "In a high-profile interview with Rick Warren, Barack Obama convinced millions of Americans he opposed gay marriage," he said. "We are calling on the president to live up to his campaign commitment."

Monday, August 17, 2009

I credit this ADF Alliance Alert for correcting my oversight about the Alliance Defense Fund (ADF), even though my correction underscores a controversy that involves ADF.

The Alert links to a San Jose Mercury News article on what I've been calling Affaire de AFER. As readers of this site know, the American Foundation for Equal Rights (AFER) has contested efforts by several gay-rights groups to intervene on behalf of additional plaintiffs in the federal challenge to Prop. 8, Perry v. Schwarzenneger. David Boies and Theodore Olson have recently filed a brief on why these groups should not be allowed to intervene.

In one of my posts on the "Affaire," I considered whether defenders of Prop. 8 are also at loggerheads over their respective roles in the Perry case. Unfortunately, I overlooked the relevant filings by the counsel for Yes on 8, Cooper & Kirk and ADF. The San Jose Mercury News today led me to renew my search of these filings:

Proposition 8 backers, however, are also trying to keep an anti-gay marriage group, the Campaign for California Families, out of the case. Among other things, they note that the campaign originally "was an outspoken critic" of Proposition 8, undercutting their ability to defend the law.

Here Yes on 8 explains why it has again opposed an intervention motion by its nemesis, the Campaign for California Families (CCF). In a declaration, ADF attorney Jim Campbell describes other examples of such opposition. (The examples are here and here.) Every time CCF tried to intervene in cases related to state litigation over Prop. 8, Yes on 8 opposed the attempt. In one instance, ADF was co-counsel, and has its own history of contratemps with Liberty Counsel, which represents CCF.

On August 19th, Judge Vaugn Walker will hold a case-management hearing in Perry v. Schwarzenegger (N.D.Cal. 3:09-cv-02292, filed May 22, 2009), the federal lawsuit challenging Proposition 8. Judge Walker will determine how the case should proceed. He is expected to resolve a dispute among the parties on whether the case warrants a trial of facts about the issues he identified in in his June 30th order. (For more on the dispute, see my earlier posts here and here.) He is also expected to determine whether other parties may intervene. These include not just proposed plaintiff parties that the ACLU, the National Center for Lesbian Rights, and Lamda Legal represent, but also a proposed defendant - the Campaign for California Families - that Liberty Counsel represents. He has ordered counsel on both sides to submit clarifications by noon today. This week I will monitor blogs and the news for posts and articles that I consider interesting.

Mea culpa. On August 8th, I looked for a Yes on 8 filing by the Alliance Defense Fund in opposition to the intervention motion by Campaign for California Families. The San Jose Mercury clearly indicates that there was a filing, which I just as clearly overlooked. Below you will find what the San Jose Mercury News says about it. Given my attention to this issue, I trust my readers won't mind if I devote a separate post to the relevant filings.

Proposition 8 backers, however, are also trying to keep an anti-gay marriage group, the Campaign for California Families, out of the case. Among other things, they note that the campaign originally "was an outspoken critic" of Proposition 8, undercutting their ability to defend the law.

"[The parties have] more than just a quibble over procedure. If Chief U.S. District Judge Vaughn Walker decides against a trial, some issues will be taken off the table, including any examination of the Prop. 8 campaign, its ads and ballot arguments, and the motives of its backers. That could prove to be the critical issue in the case. The plaintiffs hope to prove that Prop. 8, promoted as a measure to preserve traditional marriage, was actually motivated by its backers' moral and religious disapproval of homosexuality. That's not a legitimate basis for a state law, the U.S. Supreme Court ruled in a Colorado case in 1996. [Romer v. Evans, 517 U.S. 620]"

Here you will find a profile of Judge Walker. Reporter Bob Egelko notes that as attorney, Walker represented the "U.S. Olympic Committee in a lawsuit that prevented a local group from calling its athletic competition the Gay Olympics."

although [Alliance Defense Fund attorney] Langdon and his folks might think they can use this lawsuit for some fund-raising efforts, the legal success for a case challenging a status so far removed from being seen as “the equivalent of a marriage” as a domestic partner registry is very slim indeed.

08/17/09 update

In this post, I have linked to the complaint and press releases about the latest lawsuit to challenge domestic partnerships under a state's "super-DOMA" amendment. A super-DOMA amendment is an amendment to a state's constitution that bans not only same-sex marriage, but also a legal status for same-sex couples, if that status bears either any resemblance to marriage or a prohibited degree of resemblance. The lawsuit in Ohio follows a recent one in Wisconsin. The Alliance Defense Fund represents plaintiffs in both cases. Why has ADF targeted these midwestern states?

Law professor John Culhane has provided an insightful reference. In an e-mail exchange, Professor Culhane invited me to consider National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008). In this case, plaintiffs sought a declaratory judgment by the state Supreme Court that public employers do not violate Michigan constitution Art. 1, § 25, if they offer health insurance benefits to eligible same-sex partners of employees. Art. 1, § 25, states:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

Purporting to decide the case on the "plain meaning" of this language, the Court narrowly interpreted "same union," "recognize," and "for any purpose" - together with the provision's purpose ("To secure and preserve the benefits of marriage...), so that even the employer benefit in question involved recognition of a similar union for a prohibited purpose. The Court relied on dictionary definitions, and dismissed "extrinsic evidence" of intent based on the circumstances under which a majority of voters adopted the amendment. Moreover, as Professor Culhane told me, the Court

ignored rulings of other states interpreting their own super DOMAs, stating that the language was different. National Pride at Work goes further than any other case, I believe, in denying benefits based on a super DOMA.

So it's reasonable to infer that ADF - which filed an amicus brief in National Pride at Work - hopes to use this precedent to prevail in its latest challenges in Wisconsin and Ohio, even though the supra-DOMA amendments in those states expressly acknowledge allowed and disallowed degrees of similarity between unmarried couples and marriage. And Professor Culhane feels comfortable supporting this inference about ADF's strategic goal.

CLEVELAND — Alliance Defense Fund attorneys filed a lawsuit [Cleveland Taxpayers for the Ohio Constitution v. Cleveland (Cuyahoga County Court of Common Pleas Case No. CV-09-701308)]Wednesday on behalf of taxpayers against the city of Cleveland to challenge its “domestic partner registry...”

Equality Ohio has announced a lawsuit that the Alliance Defense Fund (ADF) and Citizens for Community Values (CCV) have filed against the city of Cleveland, allegedly on behalf of the city's taxpayers. ADF and CCV appear to claim that the city's domestic registry violates the highlighted language of Ohio Const. Art. XV, sec. 11:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

The highlighted language represents a version of a "super-DOMA" amendment to a state constitution. A super-DOMA amendment bans not only same-sex marriage, but also a legal status for a same-sex relationship that bears some degree of resemblance to marriage, up to near equivalence in benefits and protections. (See this informative article by Joanna Grossman and Edward Stein on the "sliding scale" from marriage equality to civil unions and domestic partnerships, although Grossman and Stein don't address the sliding scale as it applies to state constitutions.)

Equality Ohio has this to say about the Ohio lawsuit:

The Cleveland Domestic Partner Registry grants absolutely none of the 1,138 federal benefits or hundreds of state benefits married couples receive. In fact, the Registry confers no legal rights or responsibilities to the same and opposite sex couples who chose to register. It is, in essence, simply a database that couples pay the City to maintain - thus benefiting the city economically and benefitting couples by easing the work necessary to prove a relationship for some voluntary benefits offered by businesses in the Cleveland area.

This is the second lawsuit of its kind - the other is Appling v. Doyle, in Wisconsin. Both lawsuits clearly show that Alliance Defense Fund will strategically target domestic partnerships wherever its attorneys think they can succeed. (I contend here that ADF gave up challenging domestic partnerships in California by the time In re Marriage cases was decided.)08/12/09 AP / ADF Alliance Alert:

The Alliance Defense Fund said it filed the lawsuit on Wednesday on behalf of taxpayers. The alliance is also asking the court for preliminary and permanent injunctions to shut down the registry.

In a brief, pointed order (pdf), U.S. District Court Judge Vaughn Walker on Wednesday made clear that he did not get what he wanted from the parties’ most recent filing in the Perry v. Schwarzenegger Proposition 8 court challenge.

In his August 12th order, Judge Walker told attorneys on both sides that they still have not provided requested "specifics" on how the Perry case should proceed, including specific elements of their claims or defenses. He has ordered the attorneys to submit case management statements by August 17th.

As the AP also reports,

The governor and attorney general, who are supposed to defend state laws, submitted separate but similar filings Friday saying they would leave it to the conservative legal group the Alliance Defense Fund [and co-counsel Cooper & Kirk] to take the lead in defending California's gay marriage ban.

Thursday, August 13, 2009

Here's a story about my home town, the little-known island city of Alameda, California; a contested family of three Chinstrap penguins, all male; a lawsuit against the local school district; and possible fallout for the debate over whether to try to reverse Prop. 8, if, unlike penguins, the lawsuit takes flight.

On May 26, 2009, the Alameda Unified School District (AUSD) adopted a curriculum to address problems of anti-gay bullying and harassment at public schools in the city of Alameda. In a March 2009 flier, the Board explained why it was preparing to vote on the curriculum, called the Safe School Community Curriculum - Lesson 9 ("Lesson 9"). Under the California Student Safety and Violence Prevention Act of 2000, and other laws, AUSD has a legal duty

to ensure that all students, “ regardless of their sexual orientation or the sexual orientation of their family members,” feel safe in our schools and that all students have equal access to a quality education ... [I]n our teacher training, teachers reported the use of homophobic comments and teasing among K-2 students. Discussing the inappropriate use of particular words can be an effective prevention strategy, which will hopefully require fewer interventions if there is success in reducing teasing and name-calling.

Lesson 9 follows the program of the Welcoming Schools Guide of the Human Rights Campaign Foundation's Family Project. Lesson 9 introduces students to the "shared attributes of healthy familes," including gay and lesbian families. Among other things, children in grades K-3 will read and discuss Justin Richardson's And Tango Makes Three (Simon & Schuster Books For Young Children 2005). The book concerns two Chinstrap penguins who fall in love, and, with a zookeeper's encouragement, hatch and raise a chick, Tango. Wikepedia's entry on the book suggests that it has had a controversial reception.

Where issues of sexual orientation or gender identity are raised in school programs other than health, family life or sex education instruction, including programs designed to encouragerespect and tolerance for diversity, parents cannot demand their child be exempted from such programs; discussions about LGBT people are not a form of ‘sex education.’ California doesnot have a requirement for notifying parents and guardians for lessons about respect and diversity.

Angered by the failure to include the opt-out, parents voiced their opposition to Lesson 9 at the May 26th meeting of the Board, which narrowly approved it by a 3-2 vote.

In June and July, some of these parents notified AUSD of their demand for an opt-out, claiming that Lesson 9 qualifies as "instruction in health" under California Education Code section 51240. Under this code section, pupils may be excused from such instruction, if it "conflicts with the religious training and beliefs" of their parents or guardians, and if the parents or guardians request excusal in writing. The AUSD Board Superintendant responded to the parents, reaffirming that AUSD does not have a Lesson 9 opt-out.

The timing of the lawsuit at least seems suspect. In the run-up to last year's election, Yes on 8 alleged that unless voters adopted Prop. 8, the state's Education Code might be interpreted to require a curriculum of the kind that Lesson 9 represents. In fact, that allegation was one of the statements that Prop. 8 proponents made in the ballot. (See page 56 of the ballot.)

This lawsuit may hatch more than a penguin chick. Given Wikipedia's account of other tangles over Tango, the lawsuit holds promise of conjuring a new fear, a successor to the fear that was so skillfully manipulated during the Prop. 8 campaign. How? Here's an obvious media strategy for Yes on 8's next campaign against an initiative to defeat Prop 8. Call it Tango's Revenge. Under this strategy, California voters may be warned that it's already difficult enough, even with Prop. 8, to keep public school districts from adopting a curriculum like Lesson 9. Look at what AUSD has done! Imagine what will happen if a majority of voters fail to keep same-sex couples from marrying. Public schools will have renewed incentive to require children to learn - as the 2008 ballot proponents alleged - that "there is no difference between gay marriage and traditional marriage." Your elementary-school children will forced to read And Tango Makes Three!

The California Student Safety and Violence Prevention Act of 2000 added a provision that "nothing in [the Act] requires the inclusion of any curriculum" to fulfil its purposes. And the ACLU and National Center for Lesbian Rights recently argued that preventing LGBT instruction in public schools does not provide a legitimate government interest to deny the right to marry to same-sex couples. They also contend that Prop. 8 has no bearing on whether public schools adopt a curriculum like AUSD's - a contention that the lawsuit supports. But the legal arguments will make no more difference in the next campaign by Yes on 8 than they did in the last one. So the lawsuit gives Yes on 8 a promising media strategy to defeat the next anti-8 initiative. And that is why the AUSD lawsuit has been timed rather propitiously - "time and circumstance happeneth to them all" - even if its timing to coincide with the initiative debate represents nothing more than coincidence.